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CORPORATIONS ACT 2001 No. 50, 2001 - SECT 327

Appointment of auditors

(1A) Only subsections (6) to (10) of this section apply to a proprietary company. (1) Within 1 month after the day on which a company is incorporated, the directors of the company must appoint, unless the company at a general meeting has appointed, a person or persons, a firm or firms, or a person or persons and a firm or firms, as auditor or auditors of the company. (2) A person or firm appointed as auditor of a company under subsection (1) holds office, subject to this Part, until the first annual general meeting of the company. (3) A company must:

(a)
at its first annual general meeting, appoint a person or persons, a firm or firms, or a person or persons and a firm or firms, as auditor or auditors of the company; and

(b)
at each subsequent annual general meeting, if there is a vacancy in the office of auditor of the company, appoint a person or persons, a firm or firms, or a person or persons and a firm or firms, to fill the vacancy.

(4) A person or firm appointed as auditor under subsection (3) holds office until death or removal or resignation from office in accordance with section 329 or until ceasing to be capable of acting as auditor by reason of subsection 324(1) or (2). (5) If:

(a)
a vacancy occurs in the office of auditor of the company (other than a vacancy caused by the removal of an auditor from office); and

(b)
there is no surviving or continuing auditor of the company;

the directors must, within 1 month after the vacancy occurs, appoint a person or persons, a firm or firms, or a person or persons or a firm or firms, to fill the vacancy unless the company at a general meeting has appointed a person or persons, a firm or firms, or a person or persons and a firm or firms, to fill the vacancy.

(6) While a vacancy in the office of auditor continues, the surviving or continuing auditor or auditors (if any) may act. (7) A company or the directors of a company must not appoint a person or firm as auditor of the company unless that person or firm has, before the appointment, consented by notice in writing given to the company or to the directors to act as auditor and has not withdrawn his, her or its consent by notice in writing given to the company or to the directors. (8) A notice under subsection (7) given by a firm must be signed in the firm name and in his or her own name by a member of the firm who is a registered company auditor. (9) If a company appoints a person or firm as auditor of a company in contravention of subsection (7), the purported appointment does not have any effect and the company and any officer of the company who is in default are each guilty of an offence. (10) Where an auditor of a company is removed from office at a general meeting in accordance with section 329:

(a)
the company may at that meeting (without adjournment), by a resolution passed by a majority of not less than three-quarters of such members of the company as, being entitled so to do, vote in person or, where proxies are allowed, by proxy, forthwith appoint as auditor or auditors a person or persons, a firm or firms, or a person or persons and a firm or firms, to whom or which has been sent a copy of the notice of nomination in accordance with subsection 328(3); or

(b)
if such a resolution is not passed or, by reason only that such a copy of the notice of nomination has not been sent to a person, could not be passed, the meeting may be adjourned to a day not earlier than 20 days and not later than 30 days after the day of the meeting and the company may, at the adjourned meeting, by ordinary resolution appoint as auditor or auditors a person or persons, a firm or firms, or a person or persons and a firm or firms, notice of whose nomination for appointment as auditor has been received by the company from a member of the company at least 14 clear days before the day to which the meeting is adjourned.

(11) Where, after the removal from office of an auditor of a company, the company fails to appoint an auditor under subsection (10), the company must, within the period of 7 days commencing on the day of the failure, give to ASIC notice of the failure, and, subject to subsection (12), ASIC:

(a)
in a case where the company, before the end of that period, gives to ASIC notice of the failure—must, upon receiving the notice; or

(b)
in any other case:

(i)
may, at any time after the end of that period and before ASIC receives from the company notice of the failure; and
(ii)
if the company, after the end of that period, gives to ASIC notice of the failure—must, upon receiving the notice;
appoint as auditor or auditors of the company a person or persons, a firm or firms, or a person or persons and a firm or firms, who or which consents or consent to be so appointed.

(12) Where, after the removal from office of an auditor of a company, the company fails to appoint an auditor under subsection (10), ASIC must not appoint an auditor of the company under subsection (11):

(a)
in any case—if there is another auditor of the company whom ASIC believes to be able to carry out the responsibilities of auditor alone and who agrees to continue as auditor; or

(c)
in a case where, at the end of the period of 7 days commencing on the day of the failure, the company has not given to ASIC notice of the failure—if ASIC has, at any time after the end of that period, already appointed an auditor of the company under subsection (11).

(13) Subject to subsection (11), if a company does not appoint an auditor when required by this Act to do so, ASIC may, on the application in writing of a member of the company, appoint as auditor or auditors of the company a person or persons, a firm or firms, or a person or persons and a firm or firms, who or which consents or consent to be so appointed. (14) A person or firm appointed as auditor of a company under subsection (5), (10), (11) or (13) holds office, subject to this Part, until the next annual general meeting of the company. (15) Notwithstanding subsection (4), a person or firm who holds the office of auditor of a company that begins to be controlled by a corporation must, unless the person or firm sooner vacates that office, retire at the annual general meeting of the company next held after it begins to be controlled by the corporation but, subject to this Part, is eligible for re-appointment. (16) If a director of a company fails to take all reasonable steps to comply with, or to secure compliance with, subsection (1) or (5), he or she is guilty of an offence.


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