JUDGMENT

Low Hop Bing J:

[1] This is the plaintiff's application by way of amended originating summons in encl (18) asking for the following orders:

(1) That both the defendants are the trustees of the estate of Khoo Koon Siong, deceased;

(2) That the plaintiff is a child entitled to 1/3 share of the estate of Khoo Koon Siong, the deceased;

(3) That both the defendants are the trustees of the plaintiff's portion in the estate of the said deceased consisting of some 11 lots of land, all in the district of Raub, which the plaintiff alleges both the defendants have become the registered owners of share each of the aforesaid 11 lots of land.

[2] At the outset, it must be immediately emphasized that learned counsel for both the plaintiff and the defendants have submitted at great length on issues raised by the parties in their respective affidavits. Although I take cognizance of the fact that they have expended enormous efforts in filing their written submissions, I find it necessary to refer to one pertinent point only ie the issue of 'penipuan' (ie fraud or deceit) deposed to by the plaintiff on 3 September 1998 in para 7 encl (27) which is the plaintiff's affidavit, in the following words:

Oleh sedemikian saya menegaskan saya berhak mengambil tindakan ini kerana adanya isu penipuan dalam permohonan defendan pertama di bawah Ordinan Pembahagian Estet Kecil 1955.

[Translation: Therefore I stress that I am entitled to take this action because of the existence of fraud (or deceit) in the first defendant's application under the Small Estates Distribution Ordinance 1955].

[3] On the issue, Mr JS Lira, learned counsel for the first defendant, raised a preliminary objection that the mode of commencing these proceedings by way of originating summons is wrong, as the plaintiff should have commenced a writ action. Ms Vickneswary Manickam, learned counsel for the plaintiff, seemed to be quite contented with her mode of commencement of proceedings. After giving due consideration to the aforesaid submissions, I hold that there are merits in the preliminary objection raised for the first defendant. O 5 r 2(a) or (b) of the Rules of the High 1980 ('the RHC'), which was relied upon by the first defendant, reads as follows:

Proceedings which must be begun by writ

Subject to any provision of any written law and of these rules, by virtue of which any proceedings are expressly required to be begun otherwise than by writ, the following proceedings must, notwithstanding anything in r 4, be begun by writ, that is to say, proceedings --

(a) in which a claim is made by the plaintiff for any relief or remedy for any tort, other than trespass to land;

(b) in which a claim made by the plaintiff is based on an allegation of fraud; ...

[4] If the plaintiff intends the word 'penipuan' to mean deceit, then it is a claim made by the plaintiff for relief or remedy for a tort (see Derry v. Peek [1889] 12 AC 337; Blue Nile Co Ltd v. Emery Customs Brokers (S) Pte Ltd, [1990] 2 MLJ 385; Marina Sports Ltd v. Alliance Richfield Pte Ltd; [1990] 3 MLJ 5). It is trite law that deceit is an example of a cause of action in tort, in which case, O 5 r 2(a) of the RHC would apply. On the other hand, if 'penipuan' is used to mean 'fraud', then O 5 r 2(b) of the RHC would apply so that the mode of commencement would still be by way of writ. The rationale for such rules as incorporated in O 5 r 2(a) and (b) of the RHC is that parole evidence is usually required: Seah Choon Chye v. Saraswathy Devi; [1971] 1 MLJ 112; Cheong Kim Hock v. Lin Securities (Pte) (in liquidation) [1992] 2 SLR 349. Where, for example, as in the instant case, the action is commenced by originating summons, it may be continued as if begun by writ: O 28 r 8(1) of the RHC; Re Deadman, Smith v. Garland & Ors [1971] 2 All ER 101, approved in Ting Ling Kiew & Anor v. Tang Eng Iron Works Co Ltd; [1992] 2 MLJ 217; [1992] 1 CLJ 331; [1992] 1 AMR 90. In Ting Ling Kiew & Anor, supra the respondents took out an originating summons