Chang Min Tat J:

An objection is taken to this application by a cestui que trust under an executed deed of trust against the grantee for an order to administer the trust, by way of an originating summons under O. 55 r. 4 of the Rules of the Supreme Court. It is contended by the grantor that in view of the serious disputes as to fact, the action should have been commenced by writ.

It might be convenient to commence by considering the authorities on the applicability of an originating summons. An application made under O. 55 r. 4 by an originating summons is, inter alia, for administration of a trust. This must presuppose the existence of a valid trust as to which there is no dispute, the only difference or differences between the trustees and the beneficiaries being the state of the administration. It is the contention of the plaintiff, contra the application, that in the first place there is no dispute as to facts but only a dispute as to the law of trusts and of procedure and that in the second place even if there is a dispute of facts which arises during the hearing of the summons, the matter can be adjourned into open Court for the taking of evidence. Whether or not there is a dispute as to facts will be apparent in a consideration of the several affidavits filed herein which I shall have to and propose to deal with later. But so far as the law is concerned, the valid constitution of a trust is a matter to be determined on facts to be found by a trial Court so that it occurs to me that even on the strength of the submission of learned Counsel for the plaintiff and his admission, there is a dispute as to facts and that necessarily calls for evidence to be taken.

As for the adjournment into open Court, Counsel for the plaintiff relies on O. 54 r. 9 and on a passage at p. 1494 of the 1960 Annual Practice in the notes to O. 59 r. 3 under the heading "dispute as to facts" but it is clear even on his reading that in an originating summons supported by affidavits, such evidence is limited to the cross-examination of deponents on their affidavits.

He also relies on the case of Re Yeap Chor Ee [1954] MLJ 248 where the question posed in the originating summons was whether a deed of settlement made by the testator constituted a good and valid trust of certain shares. With respect, I do not myself consider that this case is of any assistance. There was, as appears clearly in the judgment no dispute as to facts and indeed Spenser Wilkinson J (as he then was) who heard the application made it clear that the deed must be construed solely from a consideration of its wording and the fact that no transfer of the shares constituting the trust property had been executed. Counsel for the plaintiff might have relied on the case of Ponniah V. Chinniah in which the Court of Appeal held that it was not necessarily fatal to commence foreclosure proceedings by an originating summons even though there was to the knowledge of the applicant's solicitors a dispute as to facts, but I think this decision must be read in the light of the learned Chief Justice's observation that the proceedings should have been commenced by writ, and also the fact that no objection was taken thereto, as in this case.

Learned Counsel for the grantor relies on Foon Seong v. Chan San Choon [1947] MLJ 85 in which it was held that an originating summons was not a suitable process where the plaintiff was really asking for a decision as to whether there was a valid trust by the deceased in his favour. The application was on an objection taken, dismissed with costs, without prejudice to the plaintiff taking any other form of proceedings to determine the points at issue.

Another case relied upon is Ong Yok Chu & Anor. V. Yong Teck Fong & Anor. (as he then was) held that in an application for a declaration by the plaintiffs of beneficial ownership in a certain piece of land and for an order for execution of transfer of the remaining half-share therein by the vendor, it