Repeat Lawsuit Struck Out: Contractor Cannot Relitigate a Sand Supply Fraud Claim After Losing Its First Suit

Case Background & Strategy

A party that loses a lawsuit in Malaysia cannot start a fresh action against the same defendants over the same facts: res judicata, including its extended form, bars matters that were or could have been raised in the earlier suit. In Juang Antara Bina Sdn Bhd v Changshi Sdn Bhd & Ors [2026] CLJU 3451, NZSK acted for the 3rd defendant, Woo Sie Wah (formerly trading as WSW Impian Enterprise), and the claim against our client was struck off, as was the claim against the 1st and 2nd defendants.

Case at a Glance

The Problem: A Second Suit Over the Same Dispute

In 2020 the contractor, Juang Antara Bina Sdn Bhd, sued a sand supplier, its director and others, including our client, in the Kuala Lumpur High Court. It filed a writ but never filed or served a statement of claim. The supplier and its director applied to dismiss that action, and although the High Court refused, the Court of Appeal allowed their appeal in September 2022 and dismissed the suit against them. The contractor did not appeal further.

Instead, it started a fresh action against the same defendants, alleging a scheme of fraud in the supply and delivery of sand to its project, with overstated quantities, non-delivery and falsified delivery records, and seeking substantially the same relief as before: declarations that the transactions were void, restitution of the money paid and orders lifting the supplier’s corporate veil.

The High Court’s Decision

The High Court allowed the supplier and its director’s application to strike out the claim against them, and dismissed the contractor’s application to transfer a related Sessions Court suit to the High Court, both with costs. The court held that the Court of Appeal’s decision was a final determination between those parties, that both suits arose from the same factual matrix and sought substantially similar relief, and that the new action was therefore barred by res judicata. Even if parts of the claim were new, they arose from the same subject matter and could and should have been raised in the first suit, so the extended doctrine of res judicata applied. Relitigating the dispute in a reformulated form was also an abuse of the process of the court.

The transfer application fell away once the claim against the supplier was struck out, and the court found it was not made in good faith, because the contractor was at the same time trying to strike out the very Sessions Court suit it wanted transferred. The claim against our client was also struck off.

The Law in Brief: Res Judicata and Abuse of Process

Res judicata prevents the same parties from litigating again a matter that has been finally decided. In its extended form, from Henderson v Henderson and affirmed by the Federal Court in Joseph Paulus Lantip & Ors v Unilever Plc, it also bars points that properly belonged to the earlier litigation and could, with reasonable diligence, have been raised at that time. A claim caught by either form, or one that is a thinly disguised repeat of an earlier suit, may be struck out under Order 18 rule 19 of the Rules of Court 2012 as an abuse of process.

A plaintiff that files a writ must also file and serve its statement of claim in time. Under Order 19 rule 1, a failure to do so allows the defendant to apply to dismiss the action, which is how the Court of Appeal disposed of the first suit.

Key Takeaways

• A final decision of the Court of Appeal binds the parties; the losing party cannot start again with a new suit.
• Points that could have been raised in the first action are barred too, under the extended doctrine of res judicata.
• Recasting the same facts as fraud, conspiracy or lifting the corporate veil does not avoid res judicata.
• A plaintiff that files a writ must file and serve its statement of claim in time, or risk dismissal.
• Inconsistent applications, such as seeking to transfer a suit while also trying to strike it out, can be refused for want of good faith.

Frequently Asked Questions

Related reading: When res judicata does not apply: a claim for continuing water leakage; more of our legal victories.

Sued again over a dispute you thought was finished? Book a consultation with NZSK so we can review the earlier proceedings and advise on striking out the claim. Learn more about our civil and commercial disputes practice.

Messrs Ng, Zainurul, Seke & Khoo (NZSK) is a Malaysian law firm with offices in Mont Kiara, Kuala Lumpur and Puchong, Selangor. Partner Khoo Ai Theng, an Advocate & Solicitor of the High Court of Malaya since 2014, acts in construction, commercial and civil disputes in the High Court and the appellate courts.