(a) any Non-Member Spouse is not a beneficiary of the trusts operating over the Fund by virtue of being a Non-Member Spouse;
(b) the Trustee owes no duties, fiduciary or otherwise, to any Non-Member Spouse by virtue of being a Non-Member Spouse;
(c) the Trustee may take any steps it considers appropriate to notify any Non-Member Spouse about this provision.
20. INDEMNITY
20.1 Without prejudice to any indemnity allowed by law or elsewhere herein given to the Trustee (but subject to rule 20.3 hereof) it is hereby expressly declared as follows:-
(a) the Trustee shall not incur any liability in respect of any action taken nor thing suffered by it in reliance upon any notice, resolution, direction, consent, certificate, receipt, affidavit, statement, certificate of stock plan of reorganisation or other paper or document believed by the Trustee to be genuine and to have been passed or signed by the proper parties;
(b) the Trustee shall not incur any liability to anyone in respect of any failure to perform or do any act or thing which by reason of any provision of any present or future law of the Commonwealth of Australia or any State or Territory thereof, or any ordinance, rules regulation or by-law made pursuant thereto or of any decree order or judgment of any competent court the Trustee shall be hindered prevented or forbidden from doing or performing;
(c) the Trustee shall not be liable to account to any Unit Holder or otherwise for any payments made in good faith to any duly empowered fiscal authority of the Commonwealth of Australia or any State or Territory thereof, for Taxes or other charges upon the Fund or upon any certificate or with respect to any transaction under this Deed, notwithstanding that any such payment ought or need not have been made;
(d) the Trustee may act upon the opinion or advice of or information obtained from barristers solicitors or valuers whether instructed by the Trustee or by any third party and the Trustee may act upon statements of or information or advice obtained from any bankers, accountants, brokers and other persons believed by it in good faith to be expert in relation to the matters upon which they are consulted, and the Trustee shall not be liable for anything done or suffered by it in good faith in reliance upon such opinion advice statement or information;
(e) the Trustee shall not be responsible for any misconduct, mistake, oversight, error of judgment forgetfulness or want of prudence on the part of any attorney, bankers, receiver, barrister, solicitor, valuer, agent or other person acting hereunder as agent or adviser of the Trustee or upon whose opinion advice or information the Trustee is entitled to act;
(f) except insofar as herein otherwise expressly provided in the absence of fraud, the Trustee shall not be in any way responsible for any loss costs damages or
inconvenience that may result from the exercise or non-exercise of any powers authorities and discretions vested in it;
(g) whenever the Trustee shall be entitled or required to buy any Authorised Investment or sell any investment or property it shall have full discretion to prescribe the times and mode of sale and the broker or agent (if any) for such purchase or sale including the right to direct postponement of such sale for so long as in its discretion it shall think fit.
Such purchase or sale shall be effected in such manner and at such place or places and times whether by public or private sale as it may determine with power to effect any sale or realisation over a period of time and in such lots or parcels as it considers advisable and to fix and vary reserve prices below which investments may not be sold;
(h) whenever the Trustee shall sell or transfer any investment or other property it shall be indemnified by the persons entitled to the proceeds of sale or to such transfer against all costs charges and expenses (including stamp duty) in connection therewith;
(i) in the event of the liquidation or dissolution of any Company or if for any other reason it becomes impossible or impracticable to carry out the provisions of this Deed in respect of such Company or otherwise the Trustee shall not be under any liability therefor or thereby not incur any liability by reason of any error of law or any matter or things done or suffered or omitted to be done by it in good faith;
(j) the Trustee may:
(i) cause all or any of the assets constituting the Fund to be vested in a nominee of the Trustee or a Securities System to be held by such nominee or Securities System upon the trusts of this Deed; and
(ii) subject to rule 11 appoint such of its employees as it thinks fit to exercise for or on behalf of the Trustee all or any of the powers and authorities exercisable by the Trustee under the provision of this Deed, and for the purposes of this Deed
investments vested in a nominee or employee of the Trustee shall be deemed to be investments or property held by the Trustee;
(k) the Trustee shall have a right of indemnity out of the Fund in respect of any liability in respect of calls or instalments or a liability for assessment for further contribution to the assets of any Company or body in which Shares are purchased for the account of the Fund;
(l) the Trustee shall not be required to effect any transaction or dealing with any certificates, transfer or other instrument, or with any part of the investments of the Fund, on behalf or for the benefit or at the request of any Unit Holder, unless such Unit Holder shall first in Cash or otherwise have provided to the Trustee's satisfaction for all duties, taxes (including income tax), governmental charges, brokerage, transfer fees registration fees and other charges (whether similar to the foregoing or not) (herein called collectively "duties and charges") whether in respect of the certificate transfer or other instrument or the relevant part of the investments of the Fund or otherwise which may have become or may be payable in respect of or prior to or upon the occasion of such transaction or dealing PROVIDED ALWAYS THAT the Trustee shall be entitled if it so thinks fit to pay and discharge all or any of such duties and charges on behalf of the Unit Holder and to retain the amount so paid of any moneys or property to which such Unit Holder may be or become entitled hereunder;
(m) the Trustee shall be indemnified out of the Fund from and against any expense and liability which may be incurred in prosecuting or defending any action or suit in respect of the provisions of this Deed;
(n) except insofar as herein otherwise expressly provided the Trustee shall as regards all the trusts powers authorities and discretions vested in it, have absolute and
uncontrolled discretion as to the exercise thereof, whether in relation to the manner of or time for the exercise thereof and in the absence of fraud, the Trustee shall be in no way responsible for any loss or non-exercise thereof;
(o) the Trustee shall not be liable for any loss in respect of the Fund or to any Unit Holder or other person unless such loss is attributable to the dishonesty of the Trustee or to neglect or default by it.
20.2 Nothing in this Deed shall be deemed to prohibit the Trustee or any Related Corporation of the Trustee or any Director or officer of the Trustee or of such Related Corporation (all hereinafter in this clause where the context permits being included in the expression "the Trustee") from acting in any representative capacity for a Unit Holder and in particular, and without prejudice to the generality of the foregoing, it is expressly declared that the Trustee may so act as executor, administrator, trustee, receiver, attorney or agent in any other fiduciary, vicarious or professional capacity, nor shall the acting in any such capacity as aforesaid be deemed a breach of the obligations arising out of the fiduciary relationship between the Trustee and the Unit Holders by this Deed established or otherwise imposed or implied by law. Subject to rule 15.2 hereof, the Trustee shall not, by reason of its fiduciary obligations, be in any way
precluded from making any contracts or entering into any transactions with itself as Trustee in the ordinary course of the business of the Trustee or from undertaking any banking, merchant banking, financial or agency services for itself as Trustee. The Trustee shall not be
accountable to the Unit Holders for any profits arising from any such contracts transactions or offices.
20.3 Notwithstanding any principle of law or any other provision of this Deed (but subject to any separate agreement between the Trustee and the Unit Holder) no Unit Holder shall by reason of holding any Unit or the relationship thereby created be under any obligation to indemnify the Trustee or any creditor of the Trustee in the event of there being any deficiency of the assets of the Fund or any part thereof as compared with the liability of the Trustee in relation thereto and the only rights of the Trustee or such creditor to be indemnified shall be limited to having recourse to the Fund or where such liability relates solely to a part of the Fund having recourse to that part or those parts in the proportions appearing from the Accounts of the Fund.
21. TRUSTEE COVENANTS The Trustee hereby declares that:
(a) the Trustee shall act continuously as trustee under the Fund until the Fund is
determined as herein provided, or it has retired or been removed from the Fund in the manner herein provided;
(b) the Trustee shall maintain the Fund in safe custody and, subject to rule 20.1(j), shall hold it as trustee for the Unit Holders entitled thereto upon the terms of this Deed;
(c) except as in this Deed provided the Trustee shall not sell, mortgage, charge or part with the possession of (or permit any nominee of the Trustee or nominated employees or individuals so to do) any of the investments of the Fund;
(d) the Trustee hereby covenants that any nominee of the Trustee will duly observe and perform the covenants and obligations of this Deed in the same manner as is required for the Trustee;
(e) the Trustee shall exercise all due diligence and vigilance in carrying out its functions and duties and in safeguarding the rights and interests of the Unit Holders;
(f) the Trustee shall use its best endeavours to carry on and conduct the Trust in a proper and efficient manner;
(g) if at any time, the total of deposits made and margin calls met by the Trustee in respect of Futures Contracts written by the Trustee on account of the Fund would, if a
particular deposit were made or a particular margin call were met, exceed in each case ten percent (10%) of the Value of the Fund, then the Trustee will not make such deposit or meet such call but shall close out its open position in relation to that Futures Contract.
22. GENERAL FEES
22.1 For both Category A and Category B Units, the Trustee is entitled to:
(a) for every attempt at payment of a contribution or transfer to the Fund (whether by cheque, electronic funds transfer or direct debit), a fee of $10.80 if there is insufficient money in the Unit Holder's bank account to meet that payment to the Fund;
(b) a fee of $1 per payment to the Fund where the Unit Holder is contributing under rule 4.5
(c) a fee of $3.35 per month where Insured Benefits are provided in respect of a Unit Holder following an application to the Insurer by the Trustee under Rule 5A.4. The fee is payable in full from the month in which the Trustee makes the application for Insured Benefits; and
(d) a fee per Member of such amount determined by the Trustee from time to time for each Contributions Splitting Application approved by the Trustee in respect of the Member.
22.2 The fees set out in rule 22.1 will increase:
(a) as from a day during each Financial Year which the Trustee considers appropriate; and (b) according to an inflation index which the Trustee considers appropriate.
Family law fees
22.3 The Trustee may retain for its own benefit from the Fund an amount equal to any fee that, but for this provision, it would be entitled to charge any person under the Family Law
(Superannuation) Regulations 2001. If under the Family Law (Superannuation) Regulations 2001, the fee:
(a) was charged; and
(b) would be payable by a particular person; and
(c) that person is presently or prospectively entitled to be paid a benefit or other amount from the Fund,
the Trustee must deduct the amount to which it is entitled from that benefit or other amount.
The Trustee may add interest, at a rate the Trustee determines, to any unpaid fee that the Trustee charges and may debit the interest to a benefit or an interest that the relevant Member or Non-Member Spouse has in the Fund.