Balia Yusof Wahi J:

[1] The plaintiff an Australian, and the defendant a Malaysian, were married in Australia in 1997 and subsequently had their marriage registered in Malaysia in 1999. In 2004 they were divorced. the plaintiff financed the purchase of a property, a single storey bungalow known as No: 113, Jalan Chow Kai, Canning Garden, Ipoh, Perak and had it registered in the name of the defendant. By a trust deed dated 5 May 1999, it was declared that the whole of the purchase price of the said house was paid by the plaintiff and it was further declared that as consent in writing of the Foreign Investment Committee and the state authority of Perak are required for a foreigner to own property in Malaysia, the trust deed declares that the defendant holds the said property in trust of her husband, the plaintiff (beneficiary) until such time the plaintiff obtains the said consent to register the same in the plaintiff s name. The trust deed further declares that upon obtaining the consent of the relevant authorities, the defendant will, at the request of the beneficiary transfer the said property to the beneficiary or sell or transfer the same to such other person or otherwise deal with the said property at such time and in such manner as the beneficiary shall direct.

[2] In a separate proceeding Via Saman Pemula No: 24-168-2003 the defendant obtained an order of custody and maintenance of the child of their marriage and also an injunction against the plaintiff from entering the said house No: 113, Jalan Chow Kai Canning Garden, Ipoh until a further order is made. The said order was made by consent of the parties. In Divorce Petition No: 33-452-2003 filed by the plaintiff, a consent order was also entered into between the parties whereby the plaintiff withdraws his claim against the said property without prejudice to his right to file a claim in another separate action against the defendant. According to the plaintiff this was done purely to expedite the divorce proceedings.

[3] The plaintiff has now come to this Court to seek for an order declaring that the defendant holds the said house No: 113, Jalan Chow Kai, Canning Garden, Ipoh in trust for him in accordance with the terms of the trust deed dated 5 May 1999 and for a further order of vacant possession and that he be allowed to re-enter the said house and costs.

[4] At the outset, counsel for the defendant takes an objection saying that while an application for declaration may be made by an originating summons, the relief for vacant possession sought by the plaintiff should be heard by way of a writ in view of the fact that the issue is highly contestable and that an injunction is still in force against the plaintiff. The case of Ng Kim Hoy v. Bank Bumiputra (M) Bhd, [1990] 2 CLJ (Rep) 526 which lays down that as a matter of procedural law an originating summons claiming a declaratory decree may be taken out for the determination of any question of construction arising out of a written instrument subject however to the courts discretion, after taking into account a variety of considerations, to decline to make a declaration especially where one of the considerations involves questions of fact which can only properly be resolved by the evidence of witnesses after a trial. While I subscribe to that view as expressed by LC Vohrah J in the said case, that situation does not arise in the present case before me here. From the affidavits filed by the parties herein, the facts are quite simple and straight forward and what is left for determination purely rests on the interpretation and construction of the trust deed dated 5 May 1999. The facts established in this instant case is not highly contestable at all. The filing of this application by way of originating summons is good in law.

[5] A declaration can be used to ascertain and determine the legal rights of parties or to determine a point of law. Section 41 of the Specific Relief Act 1950 makes provisions for a declaratory