Wiso Oil Pty Ltd & Blue Energy (Wiso) Pty Ltd v Hughes Investments (Costs) - [2025] NTSC 69

CITATION:Wiso Oil Pty Ltd & Blue Energy (Wiso) Pty Ltd v Hughes Investments (Costs) [2025] NTSC 69
PARTIES:WISO OIL PTY LTD

And
BLUE ENERGY (WISO) PTY LTD
v
HUGHES INVESTMENTS

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:2024-02368-SC
DELIVERED:  8 September 2025
HEARING DATES:  On the papers
JUDGMENT OF:  Blokland J

CATCHWORDS:
Ruling on costs.

REPRESENTATION:
Counsel:
Plaintiff:H Baddeley SC
Defendant:E Morzone KC
Solicitors:
Plaintiff:Ward Keller Solicitors
Defendant:Maher Raumteen Solicitors
Judgment category classification:    C
Judgment ID Number:  BLO2512
Number of pages:  9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Wiso Oil Pty Ltd & Blue Energy (Wiso)
Pty Ltd v Hughes Investments (Costs) [2025] NTSC 69

No. 2024-02368-SC
BETWEEN:

WISO OIL PTY LTD

First Plaintiff

AND:

BLUE ENERGY (WISO) PTY LTD

Second Plaintiff

AND:

HUGHES INVESTMENTS
Defendant

CORAM: BLOKLAND J
RULING ON COSTS
(Delivered 8 September 2025)
Introduction

On 17 January 2025 the Court found for the plaintiffs and ordered as follows:[1]
1.Within 7 days, the defendant provide to the plaintiffs a copy of the access agreements it executed and provided to its solicitors sometime on or prior to 15 January 2024 (as referred to in emails the defendant’s solicitors sent to the plaintiffs’ solicitors on 15 January 2024), regarding the ‘Inverway Station’ and the ‘Riveren Station’ (the Inverway Access Agreement and the Riveren Access Agreement respectively).
2.The defendant does all the things that may be required so that the Inverway Access Agreement and the Riveren Access Agreement are approved and registered so as to constitute an ‘approved access agreement’ as defined in reg 3(1) of the Petroleum Regulations 2020 (NT).
3.I will hear the parties on costs at a convenient time.
The plaintiffs seek costs on the basis of the usual outcome that costs follow the event. The plaintiffs submit an order for costs on the standard basis clearly should be made and that additionally, this is an appropriate case for an indemnity costs order.
The defendant submits no order for costs should be made.
It is acknowledged here the orders above were made in the somewhat unusual context of the attempts by the plaintiffs to secure ‘approved access agreements’ with the defendant under the regime created by the Petroleum Act 1984 (NT) and the Petroleum Regulations 2020 (NT).
To briefly re-visit the circumstances. The parties had reached a successful negotiation on the provision of access agreements for exploration, save as to costs of the negotiation. The access agreements had not, at the time of the hearing before this Court, been approved by the Minister. That is a further part of the process.
The Petroleum Act and Regulations requires all parties to act in good faith. Without repeating all of the conclusions reached in the decision granting the plaintiffs relief, on the material known to the Court at the time, the defendant’s conduct appeared obstructive. On the issue of costs of the negotiations, the Court concluded that under the regulatory regime, any dispute on the costs of negotiations is to be dealt with separately from the substance of the access agreements.
The defendant submits it was reasonable to reject an offer of settlement made by the plaintiffs dated 24 May 2024 because the offer was made prior to the commencement of proceedings in this Court. In the context of the particular negotiations, which were already prolonged, an offer which culminated in proceedings if rejected should not have been surprising and could not be characterised as inappropriate.
The defendant suggests there was a failure on the part of the plaintiffs to set out a case at law including providing precedents or to outline the strength of their case. The defendant was represented by senior counsel in the proceedings before this Court. The argument is without merit. The case put on behalf of the plaintiffs was transparent and capable of being answered by submissions on behalf of the defendant.
As the plaintiffs had previously initiated proceedings in the NTCAT, the defendant submitted it was not unreasonable, to be provided with a fuller articulation of the plaintiff’s case. The materials the defendant had access to which were before the Court prior to the hearing indicate clearly how the plaintiffs put their case. Nothing further was required.
The defendant pointed to the fact that the offer expired prior to the proceedings being commenced in this Court and in any event steps had been taken and were yet to be taken by the plaintiff in NTCAT to progress the matter. On the defendant’s argument, the proceedings in this Court exacerbated the issue of costs. In any event the defendant submitted its rejection of the offer made by the plaintiffs should not be viewed as inconsistent with its good-faith obligations as the defendant is not obliged as a contracting party to subordinate its interests before the conclusion of the agreements. Further, acceptance of the offer, it was suggested, would not finalise the agreements, particularly, because there was an amendment to the relief sought at trial in respect of the Riveren Station access agreement.[2]
The defendant submitted the plaintiff raised arguments which found favour with the Court, only in reply and that given the complexity and novelty of the issues in the proceedings, costs should not be awarded. This was hardly a reason to refrain from ordering costs. The refining of arguments inclusive of reply is not out of the ordinary course of litigation.
The Court has a broad discretion in relation to costs. The discretion must be exercised judicially. Usually costs follow the event. However, it is accepted that relevant circumstances and any particular features relevant to the litigation must be examined to determine whether it is just and reasonable in of all the circumstances to award costs or refrain from doing so.
The defendant pointed out a number of cases where courts have ordered parties to bear their own costs.[3] It is acknowledged this can be the outcome in a wide of range of cases when costs are to be determined.
While it may not be appropriate in all cases to examine the history of negotiations between the parties, the context here was that the parties were dealing in large part with compliance with a regulatory regime. The plaintiffs were entitled to rely on that regime in terms of taking steps towards the completion of executed access agreements.
As set out in the decision, based on the correspondence annexed to the affidavit of Bradley Torgen, promised 11 July 2024, the defendant had advised the plaintiff that the access agreements were being executed. This advice from the defendant was followed up repeatedly by the plaintiffs without meaningful responses. There was no alternative interpretation that could be made of the correspondence, other than the defendant was in the process of executing the agreements. It was not until January 2024 when the defendant raised the issue of costs of negotiation as a potential dispute that what was understood to be agreed began to unravel. I have dealt with whether such an approach was available in the decision and will not repeat those considerations here.
It seems to me, as it did at the time of the hearing, the offer made by the plaintiffs was perfectly reasonable given the overarching regulatory regime. The plaintiffs tried to reasonably resolve the dispute on costs of the negotiation by offering to pay the full amount sought by the defendant in exchange for the executed documents which the defendant had previously agreed were ready to be executed. The condition was that the parties be prepared to accept the amount later determined to be the proper negotiation costs by NTCAT.
In my view the plaintiffs went beyond what they were required to do in order to resolve the impasse and avoid further proceedings, save for potentially NTCAT determining the final negotiating costs.
These proceedings were held off until it was clear the defendant would not accept the plaintiffs’ offers. (The offers were made on 24 May 2024, and open for acceptance until close of business 29 May 2024). The defendant was warned these proceedings would most likely be filed, which they were, on 12 July 2024.
I am drawn to the conclusion that in all of the circumstances, given the regulatory regime the parties were subject to, it was not reasonable for the defendant to have rejected the offer which in the end may have simply deferred the issue of final costs of the negotiation but would not have left the defendant out of pocket.
This is the conclusion notwithstanding there was an issue raised in relation to the Riveren Station access agreement. There was a query raised on behalf of the plaintiffs with the defendant on whether the executed Riveren agreement was the same version as had been previously provided to the plaintiffs. Given the history of the matter with apparent agreement on substantive issues, it was reasonable for the plaintiffs to assume any amendment would be minor, not going to the substance. Requests for clarification were not answered before the hearing. The lack of meaningful response was unreasonable. Amendments to the relief sought were minimal.
In the decision it was concluded the defendant’s approach undermined the operation of the Petroleum Act and Regulations, the defendant was not taking steps required of a party with an obligation to act in good faith and appeared to be obstructive.
It is appreciated this may still be regarded unusual or novel litigation given the statutory context. However, in my view it was unreasonable for the defendant to reject the offers. There is no legitimate reason to deny the plaintiffs their costs in the exercise of the discretion.
The defendant raised the issue of public interest, the novelty of the proceedings, and the importance of testing the plaintiffs’ assertions. Further, it was submitted that the defendant’s response to the plaintiffs’ interests was necessarily defensive, given the relatively new regime and its connection to ADR and further NTCAT proceedings embedded in the process. Because of the public interest in resolving such matters for the benefit of others with an interest similar to that of the defendants, it was said there should be departure from the usual principle that costs follow the event.
Given the history of this particular matter, bearing in mind there is a public interest also in ensuring legislation is properly complied with and construed, the exercise of the discretion favours awarding costs in favour of the plaintiffs. The defendant’s arguments resisting any award of costs against it are without merit.
As to whether there should be indemnity costs. Although I have concluded the defendant did not act reasonably by not accepting the plaintiffs’ offers and has undermined the operation of the Act and Regulations to some degree, there are further processes to be undertaken. The processes under the Act were not finalised before NTCAT, although it is accepted they potentially could have been had the defendant acted reasonably. There are still administrative and executive steps to be finalised before final executive approval is given for exploration.
It is acknowledged there is a public interest in construing properly the operation of a regulatory regime. Against the defendant’s submission, this was not a case which was capable of clarifying any particular issue aside from the costs of negotiation being separate from substantive issues. Further, given the defendant advised it had executed the access agreements as early as October 2023, it is hard to view the matter as a ‘test case’ as suggested by the defendant. Although it was somewhat novel litigation, it could not be regarded as a ‘test case’ of any significance, save some marginal interest on negotiation costs.
Nevertheless, in my view while the strategies of the defendant have held up the process for the plaintiffs, it is not a case in which I am persuaded to order indemnity costs given the negotiation of the agreements including their costs is but part of a larger process which will require the further ongoing cooperation of the parties.
It is important to bear in mind the purpose of an award of costs is compensatory not punitive. An order for indemnity costs may on one view be justifiable. However, such an approach would contain a strong punitive element if such costs were awarded here.
Orders
1.   The defendant is to pay the plaintiffs’ costs of these proceedings on the standard basis including costs of the application for costs.
2.   The matter is certified for senior counsel.
3.   This decision and orders are to be forwarded to the lawyers for the parties by email.
[A courtesy letter will be forwarded to the lawyers for the parties].
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[1] Wiso Oil Pty Ltd & Blue Energy (Wiso) Pty Ltd v Hughes Investments [2025] NTSC 2 at [50].

[2] Defendant’s submission on costs, 12 March 2025.

[3] Defendant’s submission on costs, 12 March 2025 at 15.