Can a unit tower developer decide to swap the apartment you signed up to buy in an off-the-plan contract with one in an entirely different position in the building?
Consider the case of Sydney businessman Chao Bin Fu who walked into an exclusive VIP launch event hosted by developer Bondi Prime in August 2015.
The developer was promoting its newest jewel — a luxury apartment tower known as The Diamond. The marketing pitch was simple: a sleek 11-storey building with sweeping views, modern finishes, and high-end living just minutes from world-famous Bondi Beach.
Fu signed on the dotted line for unit 1103 — which was sold as the penthouse prize sitting proudly on the top floor — paying a hefty $160,000 deposit for the $1.6 million apartment.
Unbeknown to Fu, the developer was already eyeing ways to squeeze even more profit from its prime Bondi real estate.
Fast-forward two years, and the developer successfully convinced council to let them add a 12th floor to the building — boosting its potential revenue, but bumping Fu’s apartment one level down from the top.
By the time settlement day came in late 2018, Fu wanted nothing to do with the deal. In his eyes, he hadn’t bought just any apartment — he’d bought the one on the very top floor. And with that not being delivered, he refused to settle.
BJP terminated the contract in 2019, forfeited Fu’s deposit and then resold the apartment for $1.49 million at a $110,000 loss.
Fu sued, arguing that the developer had engaged in misleading and deceptive conduct by representing the location of the unit on the top level of the Diamond tower.
When the matter came before the Federal Court, BJP director Felix Milgrom admitted the developer’s later decision to add the extra floor was an economic decision making “more money”.
“Developers amend plans constantly,” he swore.
Fu failed in his case before the trial judge who concluded the sale contract permitted the developer to change the plans for the tower.
On appeal, the appeal judges accepted that when Fu signed the contract in 2015, BJP genuinely had council approval for 11 floors and intended to build just that and its representations were made on the basis of the approved plans.
The later change — while driven by profit — didn’t change that fact and thus BJP had not misled Fu when he first committed to the purchase.
Did though the contract permit such a change? That question was answered in the affirmative: the developer was permitted to make all manner of changes to the project midstream.
Fu had no legal recourse and was held to have been in breach of his purchase contract for having failed to have settled.
The appeal was dismissed. The developer kept Fu’s $160,000 deposit. Fu’s dream of top level living was shattered and he was ordered to pay BJP’s legal costs on top.
Fu v Bondi Junction Prime Pty Ltd (No 2) [2025] FCA 221 Goodman J, 20 March 2025
