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18-333MR ASIC obtains orders against Goldsky and Kenneth Grace
The Queensland Supreme Court has appointed Anthony Castley of William Buck as receiver and manager over the assets of Goldsky Global Access Fund Pty Ltd, Kenneth Charles Grace and associated entities. Freezing orders were also made restraining the disposal of any property (including money and securities) by Mr Grace, Goldsky Global Access Fund Pty Ltd, Goldsky Asset Management Australia Pty Ltd and Goldsky Investments Pty Ltd.
Following an investigation, ASIC alleges that Mr Grace, through his companies:
- operated a financial services business without holding an Australian Financial Services (AFS) licence and, since at least 5 June 2018, was aware that an AFS licence was required; and
- operated an unregistered managed investment scheme called ‘Goldsky Global Access Fund’ that has raised more than $16 million from more than 50 investors; and
- used investor funds for his own personal use, including substantial payments to family members and the purchase of personal items.
ASIC commenced its proceedings in the Supreme Court for the appointment of a receiver to identify and secure the assets of the alleged scheme for the benefit of investors and creditors. The orders were made on an ex parte basis on 29 October 2018 and Mr Grace consented to the continuation of those orders on 1 November 2018.
Mr Castley is to provide a report to the court by 26 November 2018.
The matter returns to the court on 8 November 2018.
ASIC investigations into the current scheme are ongoing.
Mr Grace, through his company, Goldsky Asset Management LCC, a US-incorporated company, advised ASIC that it had commenced operating a financial services business in Australia in March 2017. Goldsky Asset Management LLC purported to rely on relief from the requirement to hold an Australian Financial Services licence available to certain foreign financial services firms providing services to wholesale clients in Australia on the basis that they are subject to equivalent regulation offshore. Goldsky Asset Management LLC was authorised as an 'investment advisor' by the United States Securities and Exchange Commission (SEC).
Goldsky Asset Management LLC had appointed Goldsky Asset Management Australia Pty Ltd as its agent in Australia. On 5 June 2018, ASIC advised Goldsky Asset Management LLC that ASIC considered that it was no longer entitled to rely on the relief as it had not complied with the conditions of the relief.
On 27 September 2018 the SEC filed a civil suit in the United States District Court, Southern District of New York against Goldsky Asset Management LLC and Kenneth Grace. See SEC Litigation Release No. 24291 SEC Charges Australia-Based Investment Adviser with Fraud.
ASIC acknowledges the assistance of the SEC in its investigation.
On 8 November 2018, ASIC obtained Orders from the Supreme Court to join Jane Marzin Grace, the wife of Mr Grace, as a respondent to ASIC’s proceedings. The Court also extended the time for the receiver to produce his report until 10 December 2018 due to the receiver experiencing delay in regards to the production of books. The matter will return to Court on a date to be fixed.
Editor's note 2:
On 27 November 2018, ASIC obtained Orders to freeze accounts held by Jane Marzin Grace, the wife of Mr Grace. The matter will return to Court on a date to be fixed.
Editor's note 3:
The final hearing of ASIC’s application against Mr Grace and his Goldsky entities was heard on 8 April 2019. The Court has requested that ASIC provide further written submissions by Thursday, 18 April 2019 after which the Court will deliver its written judgment on ASIC’s application.