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CORPORATIONS ACT 2001

CHAPTER 2M - FINANCIAL REPORTS AND AUDIT  

PART 2M.4 - APPOINTMENT AND REMOVAL OF AUDITORS  

Division 6 - Appointment, removal and fees of auditors for companies    View history reference

Subdivision B - Removal and resignation of company auditors    View history reference

SECTION 329  REMOVAL AND RESIGNATION OF AUDITORS  

329(1)  [Power to remove]  


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.

329(1A)  [Two months notice of intention required]  


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)).

329(2)  [Copy to auditor and ASIC]  


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.

329(3)  [Representations by auditor]  


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.

329(4)  [Copies to members]  


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.

329(5)  [Resignation]  


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.

329(6)  [Notification by ASIC]  


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.

329(7)  [Privileged statement by auditor]  


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.

329(8)  [When resignation takes effect]  


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.

329(9)  [Resignation of auditor of proprietary company]  

 View history reference

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.

329(10)  [Retirement or withdrawal from firm]  

 View history reference

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.

329(11)  [Notice to ASIC and trustee for debenture holders]  


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.

 



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