Corporations Act. Australia
who is in default, are each guilty of an offence.
Note: An officer of a company, or of a responsible entity, is in default if the officer is involved in the contravention of subsection (1) by the company, the company’s directors or the entity (see section 83). Section 79 defines involved.
328B Nomination of auditor
(1) Subject to this section, a company may appoint an individual, firm or company as auditor of the company at its AGM only if a member of the company gives the company written notice of the nomination of the individual, firm or company for appointment as auditor:
(a) before the meeting was convened; or
(b) not less than 21 days before the meeting.
This subsection does not apply if an auditor is removed from office at the AGM.
(2) If a company purports to appoint an individual, firm or company as auditor of the company in contravention of subsection (1):
(a) the purported appointment is of no effect; and
(b) the company and any officer of the company who is in default are each guilty of an offence.
Note: An officer of a company is in default if the officer is involved in the company’s contravention of subsection (1) (see section 83). Section 79 defines involved.
(3) If a member gives a company notice of the nomination of an individual, firm or company for appointment as auditor of the company, the company must send a copy of the notice to:
(a) each individual, firm or company nominated; and
(b) each auditor of the company; and
(c) each person entitled to receive notice of general meetings of the company.
This is so whether the appointment is to be made at a meeting or an adjourned meeting referred to in section 327D or at an AGM.
(4) The copy of the notice of nomination must be sent:
(a) not less than 7 days before the meeting; or
(b) at the time notice of the meeting is given.
Subdivision B — Removal and resignation of company auditors
329 Removal and resignation of auditors
(1) An auditor of a company may be removed from office by resolution of the company at a general meeting of which notice under subsection (1A) has been given, but not otherwise.
(1A) Notice of intention to move the resolution must be given to the company at least 2 months before the meeting is to be held. However, if the company calls a meeting after the notice of intention is given under this subsection, the meeting may pass the resolution even though the meeting is held less than 2 months after the notice of intention is given.
Note: Short notice of the meeting cannot be given for this resolution (see subsection 249H(4)).
(2) Where notice under subsection (1A) of a resolution to remove an auditor is received by a company, it must as soon as possible send a copy of the notice to the auditor and lodge a copy of the notice.
(3) Within 7 days after receiving a copy of the notice, the auditor may make representations in writing, not exceeding a reasonable length, to the company and request that, before the meeting at which the resolution is to be considered, a copy of the representations be sent by the company at its expense to every member of the company to whom notice of the meeting is sent.
(4) Unless ASIC on the application of the company otherwise orders, the company must send a copy of the representations in accordance with the auditor’s request, and the auditor may, without prejudice to his or her right to be heard orally or, where a firm is the auditor, to have a member of the firm heard orally on its behalf, require that the representations be read out at the meeting.
(5) An auditor of a company may, by notice in writing given to the company, resign as auditor of the company if:
(a) the auditor has, by notice in writing given to ASIC, applied for consent to the resignation and stated the reasons for the application and, at or about the same time as the notice was given to ASIC, notified the company in writing of the application to ASIC; and
(b) the consent of ASIC has been given.
(6) ASIC must, as soon as practicable after receiving a notice from an auditor under subsection (5), notify the auditor and the company whether it consents to the resignation of the auditor.
(7) A statement made by an auditor in an application to ASIC under subsection (5) or in answer to an inquiry by ASIC relating to the reasons for the application:
(a) is not admissible in evidence in any civil or criminal proceedings against the auditor; and
(b) may not be made the ground of a prosecution, action or suit against the auditor;
and a certificate by ASIC that the statement was made in the application or in the answer to the inquiry by ASIC is conclusive evidence that the statement was so made.
(8) Subject to subsection (9), the resignation of an auditor takes effect:
(a) on the day (if any) specified for the purpose in the notice of resignation; or
(b) on the day on which ASIC gives its consent to the resignation; or
(c) on the day (if any) fixed by ASIC for the purpose;
whichever last occurs.
(9) The resignation of an auditor of a proprietary company or a small company limited by guarantee does not require the consent of ASIC under subsection (5), and takes effect:
(a) on the day (if any) specified for the purpose in the notice of resignation; or
(b) on the day on which the notice is received by the company;
whichever is the later.
(10) Where on the retirement or withdrawal from a firm of a member the firm will no longer be capable, by reason of the provisions of subparagraph 324BB(1)(b)(i) or (2)(b)(i) of acting as auditor of a company, the member so retiring or withdrawing is (if not disqualified from acting as auditor of the company) taken to be the auditor of the company until he or she obtains the consent of ASIC to his or her retirement or withdrawal.
(11) Within 14 days after:
(a) the removal from office of an auditor of a company; or
(b) the receipt of a notice of resignation from an auditor of a company;
the company must:
(c) lodge with ASIC a notice of the removal or resignation in the prescribed form; and
(d) where there is a trustee for the holders of debentures of the company — give to the trustee a copy of the notice lodged with ASIC.
330 Effect of winding up on office of auditor
An auditor of a company ceases to hold office if:
(a) a special resolution is passed for the voluntary winding up of the company; or
(b) in a case to which paragraph (a) does not apply — an order is made by the Court for the winding up of the company.
Subdivision C–Company auditors’ fees and expenses
331 Fees and expenses of auditors
The reasonable fees and expenses of an auditor of a company are payable by the company.
Division 7 — Appointment, removal and fees of auditors for registered schemes
Subdivision A — Appointment of registered scheme auditors
331AAA Registered