In commercial property contracts, we see “purchaser and/or nominee” quite regularly.

Usually, there is a practical reason for it. The purchaser may not have finalised the acquisition entity at the time the contract is signed, or may want some flexibility around the eventual ownership structure.

That is not unusual. However, in some transactions, there is considerably more sitting behind those four words.

One matter I worked on a transaction involving a foreign-owned business acquiring vacant commercial land in Victoria. The intention was to establish a manufacturing business on the site, subject to obtaining the necessary regulatory approvals, including Therapeutic Goods Administration (TGA) approval.

The contract was signed as purchaser and/or nominee, with the acquisition entity to be incorporated later and nominated before settlement.

The nomination was only one part of the transaction.

Nomination and Duty

One of the issues was the timing of the nomination and what happened between signing the contract and nominating the new entity.

In Wilkinson v Commissioner of State Revenue [2024] VCAT 807, VCAT considered a nomination under Victoria's sub-sale provisions and held that a typical nomination can constitute a “transfer right” for the purposes of the Duties Act 2000 (Vic).

The SRO's Revenue Ruling DA-064v2 — Meaning of Land Development is also relevant. It sets out a number of activities that can amount to land development, after entering into a contract but before a nomination including certain planning and development steps.

For example, if the purchaser enters into the contract, starts progressing planning matters and then nominates the new entity, you need to consider what happened during that period and the potential duty consequences.

The nomination itself may be straightforward.

What happens before it may not be.

Foreign Investment Review Board (FIRB) issue

The nominee was going to be foreign-owned, so we needed to look at who ultimately owned and controlled the acquisition vehicle, as well as the nature of the land and what the client intended to do with it.

The intended use was particularly important.

This was not a case where the client wanted to sit on vacant land. They wanted to build a manufacturing facility which then raised a practical issue with the usual vacant commercial land conditions.

That meant looking beyond the entity that would ultimately appear on title and considering who would actually own and control it.

The important factors are: the ownership and control of the acquisition vehicle, the nature of the land and the proposed use all needed to be considered.

The project was also dependent on obtaining the necessary regulatory approvals, including TGA approval.

The client isn't simply buying land. They are buying it for a purpose.

That brought another question into the FIRB analysis.

What if the necessary regulatory approval wasn't obtained?

The general FIRB conditions for vacant commercial land contemplate development within a specified timeframe (typically 5 years from the settlement date) and generally restrict disposal before development is completed.

Those conditions make sense from a policy perspective. They are intended to encourage vacant land to be put to productive use, rather than simply being held as an investment or for land banking.

However, considering the client's position, if the necessary regulatory approvals are not obtained, the client may not be able to proceed with the manufacturing facility at all.

They may instead need to sell the land. However, that can become difficult if the conditions attached to the FIRB approval do not accommodate that situation.

FIRB application was not simply about obtaining a no-objection outcome.

The client's business plan, regulatory dependencies and fallback position needed to be understood and reflected when considering the proposed FIRB conditions. In this case, that meant seeking amendments to the standard vacant commercial land conditions so that they accommodated the client's particular circumstances and the possibility that the proposed development might not proceed.

Why the different issues need to be considered together?

This is where I think the commercial context matters.

It wasn't simply:

“Can the client nominate the company?”

or

“Can the client get FIRB approval?”

We had to look at what the client was actually trying to do with the property, what could happen if that plan didn't work, and how the ownership structure, duty and FIRB position fitted around it.

None of these issues exists in isolation.

A purchaser can have a perfectly workable nomination from a settlement perspective, but still have a problem if the nomination has been structured without considering the duty consequences.

Similarly, a client can obtain FIRB approval, but the conditions attached to that approval may not sit comfortably with the way the client actually intends to use the property.

That is why, when I see “purchaser and/or nominee”, I don't treat it as simply a settlement issue.

I look at why the client is buying the property, who will ultimately own and control it, what approvals the business depends on, and what happens if the original plan changes.

The legal structure needs to work with the commercial objective.

For significant commercial property transactions, that broader context can be just as important as the contract itself.

These are the types of issues I enjoy working through with clients, where the legal position needs to make sense not just on paper, but for the commercial transaction and the business behind it.

If you are considering a commercial property acquisition and would like to discuss the legal and structuring issues early in the process, please feel free to get in touch.

Author: Samantha Lo, Principal Lawyer

Date published: 26 August 2026

Disclaimer: This article, current as at the date stated, is provided for reference only. It does not constitute legal, tax, financial or other professional advice and should not be relied on as legal advice. You should discuss your specific situation with a suitably qualified professional advisor before taking any action.