BUN FIGHT: Former Brumby's franchisee sues company
THE former franchisee for a closed Toowoomba Brumby's bakery has taken the company to court over $153,000 in dough for "unjust advertising fees".
Garden City Bakeries Pty Ltd is suing the Australia-wide baking business in the Toowoomba District Court in a bun fight over weekly payments spanning seven years that were "paid by mistake" and a "total failure of consideration".
The plaintiff ran the bakery franchise at Westridge Shopping Centre in Kearneys Spring for more than 20 years until it closed a few weeks ago.
In the statement of claim from April 26 obtained by The Chronicle, solicitor Guy Sara from Chris Sheath and Associates argued the costs were not outlined in the original lease agreement, which had expired in 2008.
"By error of the plaintiff's accounts the plaintiff on February 16 2011 commenced paying to the defendant a marketing advertising fee," the statement read.
"The marketing advertising fee was paid by mistake and there was no legal obligation pursuant to the original franchise agreement, or the lease upon which the plaintiff held the premises as franchisee, to make payment.
"The payment of the fee...was paid on the basis of a mistaken payment, and to which the defendant was recipient, was not entitled."
After discovering the "overpayment" earlier this year, Garden City Bakeries contacted Brumby's to ask for the money back, which now totalled $153,051.80.
"The defendant failed to pay the sum of $153,051.88 to the plaintiff or to respond to the notification," the statement said.
"The monies paid... constituted payments made for performance which had not occurred as no valid contract existed between the plaintiff and the defendant with respect to the supply of advertising.
"The defendant is unjustly enriched as a result of the mistake made by the plaintiff, and/or total failure of consideration, in the sum of $153,051.88."
The Brumby's store, one of the first established in Toowoomba, has been listed as closed on Google and the location has been pulled from the company's website.
Brumby's is yet to make representations against the claim, nor has another court date been set.
Chris Sheath and Associates was contacted for further comment, but did not respond in time.