And/or nominee: naming a different buyer on a Queensland contract

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Kooky

Builder of Shaka, the payment router that pays every agent their commission on closing date.

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A buyer finds the right property before the accountant has answered the question of who should own it. The contract has to be signed this week; the company or the trust that might take title does not exist yet, or the couple have not decided whether one name or two will go on the register. So three words are written after the buyer's name: and/or nominee.

Those words feel like a way of keeping every option open. In Queensland they open fewer doors than most buyers expect, and the one they open can lead to a second transfer duty bill on the same property. Duty is charged on agreements, not only on the transfer at the end, and the Queensland Revenue Office has published its view on what happens when the person who settles is not the person who signed.

This guide follows that buyer through the contract question, the duty question, and the knock-on effects for cooling-off, finance, first home relief, foreign acquirer duty, the transfer form and identity checks. The outcome in any real file depends on the documents and on the order in which they were signed.

Queensland Revenue Office practice direction DA022.1.1 and public ruling DA115.1.3; FKG01 Pty Ltd v Commissioner of State Revenue [2025] QSC 105.

What the three words do

A contract binds the people who made it. The seller has promised to sell to the named buyer, and the named buyer has promised to pay. Writing "and/or nominee" after the buyer's name does not put a second signature on the page. The nominee, who may not have been chosen or even incorporated when the contract was signed, has promised the seller nothing.

What the words can do depends on the rest of the document. If the contract contains a clause that says how a nomination is made, by what date and with what effect, the buyer has a contractual right to put someone forward and the seller has agreed in advance to deal with that person. Three words with no clause behind them leave the question of what the seller has agreed to open.

Even a well-drafted clause answers only the contract question: who may call for the transfer and who must pay. It does not answer the duty question, which is governed by a different set of rules.

Duty is charged on the agreement

The Duties Act 2001 lists the events that attract transfer duty. A transfer of dutiable property is one. An agreement for the transfer of dutiable property, whether conditional or not, is another, under section 9(1)(b). The Revenue Office's public ruling DA115.1.3 sets out the consequence: liability arises when the agreement is made, and the document must be lodged within 30 days.

In an ordinary purchase nobody notices that there are two dutiable events, because section 22(2) of the Act removes the second. Where duty on an agreement has been paid, no duty is imposed on the transfer of the property to the transferee under that agreement. Contract and transfer are treated as one purchase, taxed once.

That protection is tied to the transferee under the agreement. When the name on the transfer is not the name on the contract, the two documents no longer line up by themselves, and something has to explain how the property travelled from the seller, through the person who signed, to the person who is registered. Each explanation has its own duty result. The Act also deals with chains: under section 22(5), where a first agreement is followed by intervening agreements, no duty is imposed on the transfers that give effect to them once duty on all of the agreements has been paid. The relief is for the transfers. The agreements are each assessed.

The agency route: one purchase, taxed once

The Act provides one route written for the buyer who signs on behalf of someone else. It is in section 22(3), and the Revenue Office's current statement of how it applies is practice direction DA022.1.1, titled "Nominee agreements, under an agency relationship". The direction was issued on 3 April 2024 and took effect on 8 April 2024, replacing a public ruling of the same number that had stood since 24 February 2009.

Under section 22(3), as the practice direction sets it out, no transfer duty is imposed on the later transfer to the principal if the Commissioner of State Revenue is satisfied of all of the following:

1. the agent was appointed in writing as agent for the principal;
2. under that appointment, the agent entered into the agreement to acquire the property from the seller on the principal's behalf;
3. the principal provided all of the consideration, including any deposit;
4. transfer duty on that agreement has been paid;
5. the property was later transferred to the principal, by the seller or by the agent.

Two of the five decide most cases. The first is timing: the appointment has to exist, in writing, when the agent signs. A buyer who signs in a personal capacity and decides a month later that a company should own the property did not sign as that company's agent, and no later document can change what was true on the day. The second is money: the principal must have provided all of it, deposit included. A deposit paid from the signing buyer's own account, for a company not yet formed, sits badly with that condition.

Section 22(4) adds a rule of proof. The Commissioner must not be satisfied that the agent was properly appointed unless the original instrument of appointment, or a copy of it, is lodged.

The route is narrow by design. It is not a general permission to substitute a buyer: it recognises that the principal was the real buyer from the first day.

Nomination under a clause: the Revenue Office's example

A buyer who cannot meet the agency conditions may turn to the nominee clause itself, reasoning that a nomination made exactly as the contract provided changes nothing. The Revenue Office reads it differently. Public ruling DA115.1.3, issued on 11 March 2021 and listed as current, includes an example on this point. A buyer nominates a third party under a clause in the first agreement, and the third party signs an agreement on the same terms. In the ruling's view the first agreement was not cancelled. The parties did what it provided for, so it was performed. Duty is payable on both agreements.

The ruling makes the same point in general terms. Where an agreement can be performed in several ways, and it is performed other than by a sale to the named buyer, it has not been cancelled. A public ruling is the Commissioner's published view, not the law itself, and legislation and court decisions prevail over it.

Cancelling by consent and signing again

The other way to change the buyer is to end the first contract and make a second one with the right name on it. Section 115 of the Duties Act deals with cancelled agreements. Under section 115(1), as the ruling summarises it, no transfer duty is imposed on an agreement that ends because a party breached it, because a condition was not fulfilled, because it was frustrated, or because the parties consented to end it and there is no resale agreement.

The last limb is the one a change of buyer relies on, and "resale agreement" is where the difficulty sits. Under section 115(2), the second agreement is a resale agreement if some or all of the same property is to be transferred under it, and the buyer under the cancelled agreement, or a related person of that buyer, directly or indirectly receives a financial benefit. Two things do not count as a benefit: being released from the cancelled agreement, and an interest in the property whose unencumbered value does not represent a profit to the first buyer because of the resale agreement. The ruling says "financial benefit" is not defined, takes its ordinary meaning, covers money or money's worth, and is a question of fact each time.

The ruling's examples show where the line falls.

The exemption also has a procedure. If duty on the first agreement has not yet been paid and the exemption applies, the ruling says nothing is payable and, in general, nothing needs to be lodged, unless there is a resale agreement or the Commissioner asks for the document. If duty has already been paid, the Commissioner must reassess on an application made within six months after the agreement ended, or a longer period the Commissioner allows. The Revenue Office's page on the exemption lists what is lodged: the original stamped documents, a statutory declaration from each party, and a dutiable transaction statement, Form D2.2, marked as a section 115 claim. If the reassessment is granted, the duty paid is refunded.

The ruling also requires that the first agreement be ended by cancellation, before its commercial or practical purposes have been achieved. A first contract that is settled, or carried out in some other way, and then followed by new rights under a second document has been discharged by performance, and the ruling says that is not a novation.

How the courts read a swap between related companies

The Queensland courts have recently tested how the resale agreement rule applies when the second buyer is related to the first. In FKG01 Pty Ltd v Commissioner of State Revenue, decided by Justice Hindman in the Supreme Court on 19 May 2025, a company had contracted to buy a commercial property in Toowoomba for $10 million. Duty of $555,525 was assessed and paid. On 31 August 2022 the buyer, the seller and a related company of the buyer signed a deed of rescission, and the seller signed a replacement contract with the related company at the same price. Duty of $555,525 was paid again on the replacement contract, a total of $1,111,050 across the two.

The first buyer applied for the duty on the cancelled contract to be reassessed. The Commissioner refused, on the ground that the replacement contract was a resale agreement: it contained a $50,000 adjustment in the related company's favour, and the deed gave the first buyer an indemnity for duty. The Supreme Court allowed the buyer's appeal. The $50,000 reflected a payment from an outgoing tenant that the seller would have had to account for anyway, so it did not represent a profit to the first buyer because of the replacement contract. The indemnity was not a real benefit unless duty turned out to be payable.

The Court of Appeal, in a judgment delivered on 6 February 2026 by Chief Justice Bowskill with Justice Doyle and Justice Wilson agreeing, dismissed the Commissioner's appeal with costs.

Two points travel beyond the case. A replacement contract with a related person is not automatically a resale agreement: the test is financial benefit, not relationship. And the cost of finding that out was a second full payment of duty, a refusal, an objection and two court hearings over more than three years.

A nominee clause settles who the seller must deal with. It does not settle how many times the purchase is taxed.

Novation, assignment and the seller's say

Three legal ideas are often used as if they meant the same thing.

A novation replaces one contract with another. Ruling DA115.1.3 describes it as a new agreement that substitutes for and discharges an earlier one, and says it can be done by ending the contract and making a new one, by a written amendment or by a deed of variation, with the parties' intention deciding the matter. The ruling is firm on consent: all of the original parties, and any new party, must agree. Without that, in the Revenue Office's view, duty applies to both agreements.

A rescission and new contract is the plainest form of the same thing: one document ends the first contract, a second creates the new one. That was the structure in the FKG01 case.

An assignment is different. The original buyer stays in the contract and passes on the benefit of it, the right to receive the property, to someone else. The ruling and the practice direction discussed here do not set out a position on assignments, and the duty treatment of one depends on what exactly is being transferred and for what. That is a question for the lawyer on the file before any deed is signed, not after.

In each case the seller is more than a bystander. A seller who agreed to sell to one person is being asked to accept another, sometimes a newly formed company, and may attach conditions or decline. Where the contract has a nomination clause, the clause sets the limits.

Cooling-off and finance when the buyer changes

A change of buyer disturbs two protections that were built around the first contract.

Cooling-off is one. The Queensland Government's guidance for the property industry says the cooling-off period on a residential contract runs for five business days, ends at 5pm on the fifth, and starts on the day the buyer receives a copy of the contract signed by both parties. It also lists the buyers and sales that have no cooling-off period at all, among them sales by auction, buyers that are publicly listed corporations or their subsidiaries, and buyers purchasing at least three lots at the same time. A replacement contract is a contract in its own right, with its own buyer and its own date of delivery. Whether a period runs under it, and whether the first period has already been used or waived, turns on the documents. A buyer who terminates during cooling-off can lose up to 0.25 per cent of the price from the deposit.

Finance is the other. A finance condition is written for the buyer named in the contract, and a loan approval is given to a named borrower. Whether an approval obtained personally can be carried across to a company or a trustee is the lender's decision, and it is a question to put to the lender before the buyer on the contract is fixed, not after the finance date has passed.

First home relief and the foreign acquirer charge

Two parts of the duty assessment depend on who the buyer is, so they move when the buyer moves.

The first home concession is personal. The Revenue Office's page on the concession, updated on 31 July 2026, says the claimant must be legally acquiring the property as an individual, and that companies cannot claim it except as trustee in limited cases involving beneficiaries under a legal disability. The home must be valued under $800,000 and the buyer must move in within one year of settlement. The page also says that selling or transferring all or part of the property before moving in removes the concession, which is relevant to any plan to take title first and move it to another entity afterwards. For transactions entered into on or after 1 August 2026, the claimant must be an Australian citizen, a permanent resident or a specified foreign retiree when the transaction is entered into, so the date of a replacement contract can matter.

Additional foreign acquirer duty works the other way: substitution can bring it in. The Revenue Office's page, also updated on 31 July 2026, gives the rate as 8 per cent where the transfer duty liability arose on or after 1 July 2024, charged on the foreign acquirer's interest in residential land. The lodgement questions ask whether the transferee is an agent for a principal and whether the principal is a foreign person, so an Australian agent signing for a foreign principal does not remove the charge. The page adds that where the charge was not applied and the transferee becomes a foreign trust or foreign company within three years, documents must be lodged for reassessment.

What the transfer and the identity checks record

At the end of the file there is a transfer, and it has to tell the same story as the contract.

Titles Queensland's guide to transferring freehold land, updated on 11 August 2026, describes the form. Item 3 of Form 1 names the transferor, as shown on the title search. Item 4 states the consideration. Item 5 gives the full name of each transferee, and where there are two or more, whether they hold as joint tenants or as tenants in common and in what fractions. A Form 24 with property information is deposited with it, and a Form 25 where the transferee is a foreign person, a term that covers a foreign corporation and the trustee of a foreign trust. Every transfer must carry a duty notation, and duty must be accounted for with the Revenue Office before lodgement.

That last requirement is where a late change of buyer surfaces: the person in Item 5 has to be connected to an agreement on which duty has been dealt with.

Identity checks follow the eventual buyer too. AUSTRAC, the federal regulator, says that from 1 July 2026 anti-money-laundering obligations apply to businesses that broker a sale, purchase or transfer of real estate for a customer, with the work of a seller's agent and of a buyer's agent given as examples, and to lawyers and conveyancers who help a person plan or carry out a transaction. The Attorney-General's Department describes the core of those obligations as verifying a customer's identity before providing the service and understanding the customer's risk profile. A company or trustee introduced late is therefore a new party to be identified before the file can move.

Where the decision belongs in the timeline

Taken together, the published positions point to the same place: the cheapest time to choose the buyer is before the contract exists.

Where the entity cannot be ready in time, the questions for the lawyer on the file are specific. Is there a written appointment today, and who will pay the deposit? If the plan is to cancel and re-sign, will the first buyer or anyone related to it receive anything beyond a release? Do the first home concession, the lender's approval and the cooling-off period survive the change? The answers depend on the wording of the documents and the dates on them.

Kooky, from Shaka

Kooky edits Queensland Estate and builds Shaka, the payment router he made for Queensland property professionals. One payment comes in, and every agent, agency and party in the deal receives their signed share on closing date.

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