Rod Nash - A cancelled commission case study

By Cass Matthews on 31st December 2009

Rod Nash was shocked when a Sydney council told him to stop work on his sculpture “Seed” which they had commissioned him to make for a public library. Rod contacted Arts Law to find out his rights. In particular, he wanted to know whether he was entitled to the outstanding amount which the council had agreed to pay for the sculpture even though they no longer wanted it. As there was no formal written contract between Rod and the council our first task was to determine what agreement, if any, existed regarding the sculpture commission.

Seed

Seed (incomplete) © Rod Nash

In early 2009, Rod received an email from the council stating, “the Design team was very pleased with your presentation and have decided on you as the preferred artist... Congratulations on your success for this commission.” The email did not mention any further approval process regarding the project.  The details of Seed’s construction and installation were decided during several meetings and telephone discussions between Rod and the council over a few months. The design and budget ($12,300) were verbally agreed by the council. At their request, Rod submitted an interim invoice for $6,000, which was promptly paid.

Rod Nash

Rod Nash

However four months after the commission was confirmed, Rod received an email from the council stating, “I am very sorry to have to tell you that ‘Seed’ has not received final approval... it will not be possible to see it gracing the Library.” This came as a complete surprise to Rod. Having relied on the council’s promises he had already spent six weeks working on the sculpture and spent over $4500 on materials.

Based on Rod’s verbal and written communication with the council, it seemed very likely that a binding contract did exist between Rod and the council. A contract does not generally need to be in a specific form to be enforceable; it can be verbal, written or a mixture of both, and in Rod’s case it was mixture of documents, emails and conversations. During the advice session with Rod, we drafted a letter of demand to the council. The letter clearly outlined Rod’s position that the council were bound by a contract according to which they owed him $12,300 in exchange for the sculpture. As a result the council paid Rod the outstanding amount and took possession of the work.

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About the author

Cass Matthews

Arts Law Volunteer Lawyer

Cass Matthews a lawyer specialising in arts and media law.

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