ASIC has cancelled the Australian financial services (AFS) licence of Guildfords Funds Management Pty Ltd (Guildfords) after ASIC found significant and systemic failures of oversight and compliance in Guildfords' provision of financial services.
ASIC has also banned for four years Dr Robert Payne-Guildford's Responsible Manager, Key Person and sole director-from providing financial services, performing any function involved in the carrying on of a financial services business, and controlling an entity that carries on a financial services business. See: 24-139MR.
Guildfords provided advisory and dealing services in interests in managed investment schemes and securities, and custodial and depository services to wholesale clients. Along with its role as AFS licensee, Guildfords also provided trustee services to unregistered managed investment schemes (Schemes), including the Magnolia Capital Opportunities Fund II (Magnolia Head Fund).
From 19 September 2018 to 7 October 2022, former Magnolia Capital Group director Mr Mitchell Atkins was an authorised representative of Guildfords. Magnolia Capital Group entities, Magnolia Investment Pty Ltd (in Liquidation) (MIM) and Magnolia Asset Management Pty Ltd (in Liquidation) (MAM) were also corporate authorised representatives of Guildfords.
From 30 August 2018 to 13 July 2022, Dr Payne and Mr Atkins were also directors of MAM.
On 22 November 2023, ASIC disqualified Mr Atkins from managing corporations for five years and banned him for 10 years from providing financial services and engaging in credit activities (see 23-311MR).
ASIC found that Guildfords failed to meet numerous obligations of the Corporations Act 2001 (Act), arising predominantly from its failure to adequately supervise Mr Atkins (and MIM) which enabled unauthorised high-risk trading of derivative products, specifically contracts for difference (CFD), that resulted in investor losses.
ASIC's findings included that Guildfords:
- did not comply with the financial services laws given it, as trustee of the Magnolia Head Fund, dealt in CFDs when it did not hold an AFS licence to do so and failed in its breach reporting obligations to report a reportable situation to ASIC;
- did not take reasonable steps to ensure that its representatives complied with financial services laws, and was involved in its representatives' unauthorised CFD trading given Guildfords, as the trustee of the Magnolia Head Fund, released monies for CFD trading without conducting checks or making any objective enquiry that the released funds would be used appropriately and in accordance with the Act;
- did not take reasonable steps to ensure that its representatives complied with financial services laws given Guildfords failed to have oversight over documents which included misleading or deceptive representations (arising from Guildfords being unable to confirm whether it sighted such documents);
- did not comply with the conditions of its AFS licence as it failed to maintain measures to ensure compliance with financial services laws and failed to maintain training registers of its representatives;
- did not have adequate arrangements in place to manage the conflict of interest arising from Dr Payne being a director of MAM while also a responsible manager of Guildfords;
To minimise the impact of the cancellation on current clients of Guildfords, the cancellation is subject to specifications, including that the licence continues until 30 December 2024 for the purpose of Guildfords providing services that are reasonably necessary for, or incidental to the day-to-day operation of the Schemes (excluding issuing any new interests in the Schemes).
Guildfords has the right to apply to the Administrative Appeals Tribunal for a review of ASIC's decisions.
The cancellation of Guildfords' AFS licence is part of ASIC's work to ensure that licensees adequately supervise their representatives and comply with their obligations under the Act.
Background
ASIC warnings - CFDs
CFDs are leveraged derivative contracts that allow a client to speculate in the change in value of an underlying asset, such as foreign exchange rates, stock market indices, single equities, commodities or crypto-assets.
ASIC has highlighted the risks of trading CFDs in several consultation papers and report in the last 14 years as part of its supervisory work, including:
- in August 2019 published Report 626Consumer Harm from OTC binary options and CFDs;
- in August 2019 published Consultation Paper 322Product Intervention: OTC and binary options; and
- in October 2021 publishing Consultation Paper 348 The extension of the CFD Product Intervention Order.
The Magnolia Head Fund
Under the umbrella of the Magnolia Head Fund were nine sub-trusts.
On 21 March 2022, Guildfords became the trustee of the Magnolia Head Fund (and all the sub-trusts) with MIM (under the control of Mr Atkins) appointed as the investment manager of the Magnolia Head Fund (and all the sub-trusts).
Corporate Authorised Representatives
MAM was authorised under Guildfords' AFS licence between 19 September 2018 and 7 October 2022. MIM was authorised under Guildfords' AFS licence between 3 November 2020 and 7 October 2022.
Mr Atkins
Mr Atkins was a director of all the companies in the Magnolia Capital Group, including 13 companies where a liquidator's report was lodged with ASIC and identified that the companies were unable to pay their unsecured creditors more than 50 cents in the dollar.
On June 2023, ASIC obtained an order from the Federal Court of Australia to restrict Mr Atkins from leaving Australia for a period of six months. On 21 December 2023, that order was extended until 30 June 2024, subject to an exception permitting Mr Atkins to travel overseas to undertake a medical procedure: see 23-176MR.
ASIC's investigation into the affairs of the Magnolia Capital Group is continuing.
