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If you are studying civil procedure, you will meet res judicata, issue estoppel and striking out. They usually arrive as abstract rules. This week's case shows all three at work on real facts, plus a twist about arbitration that most textbooks only touch on.

The short version: a developer said it was tricked with fake company papers. It argued that in an arbitration and lost. So it went to the High Court and sued a different set of people. They said the point had already been decided and asked the court to throw the case out. The court said no.

Arbitration. A private way to settle a dispute outside court. The parties agree in their contract to send disputes to an arbitrator, who makes a decision called an award.

Striking out. Asking the court to end a claim before trial because it cannot possibly succeed. In Malaysia it is done under Order 18 rule 19 of the Rules of Court 2012.

Res judicata. Latin for "a matter already decided". Once a court has decided something between parties, they cannot be dragged back to fight it again.

Issue estoppel. One form of res judicata. It stops a party reopening a particular question that was necessarily decided in an earlier case.

Statement of claim. The document where the claimant sets out its case. Courts compare these documents closely when deciding if two cases are really the same.

SPNB Aspirasi is a housing developer. In 2014 it received a proposal to build a project. It says it was also shown papers for a company called TMDC(M): company forms, three years of audited accounts and a winding up search. The papers made TMDC(M) look like an established builder.

SPNB says TMDC(M) never existed. An application to register it was only made in March 2015 and was rejected the next day. So papers dated 2012 to 2014 could not be genuine. The project ended up with a related company, TMDC(KL), under agreements signed in 2015 and 2017.

The relationship broke down and went to arbitration between SPNB and TMDC(KL). SPNB argued that TMDC(KL) got the job through fraud, using those fake papers. The arbitrator rejected that because SPNB had not proved it. SPNB tried to overturn the award and failed in the High Court and then the Court of Appeal. The Federal Court refused to hear a further appeal.

SPNB then sued a wider group in the High Court for conspiracy and fraud. Four of them were a company called Tunas Manja Development & Construction Sdn Bhd and three individuals linked to it. None of them had been part of the arbitration.

Those four applied to strike the claim out. Their argument: the fake papers story has already been tried, rejected and upheld all the way up. SPNB should not get a second attempt just by suing new people.

Striking out shuts a party out of court without a trial, so the bar is high. The leading case, Bandar Builder, says it is only for plain and obvious cases, where the claim is clearly unsustainable on its face. If the court would need to weigh disputed evidence, it is not plain and obvious.

The judge added something worth remembering. Fraud and conspiracy claims are especially unsuited to being struck out. They depend on what people knew and intended. That usually only comes out through documents and cross examination at trial.

For issue estoppel to apply, the same question must have been decided before. The judge compared what SPNB argued in the arbitration with its new statement of claim.

On the fake papers, they were substantially identical: the same documents, the same 2014 meetings and the same allegation. Suing different defendants in a different forum did not turn it into a new issue.

But the new claim went further. It alleged a separate lie in August 2015: that TMDC(KL) was a subsidiary of Tunas Manja. It also alleged that SPNB's own former chairman and a former executive director helped the scheme in breach of their duties. Nothing showed the arbitrator was ever asked about either. So the overlap was only partial.

This is the heart of the case.

The usual rule is that issue estoppel only binds the same parties, or people closely connected to them. But in Dato' Sivananthan the Court of Appeal took a broader view: identity of parties is not always essential, if there is no real or practical difference between the issues and evidence in the two cases. The defendants relied on that.

The judge accepted that Dato' Sivananthan allows a non party to rely on issue estoppel. But the judge pointed to a more basic problem. Arbitration runs on consent. An arbitrator only has power over the people who agreed to arbitrate. These four defendants never signed the contracts and were never in the arbitration. They could not give evidence or question witnesses about their own conduct.

So the arbitrator decided whether TMDC(KL) got the job by fraud. He did not decide whether these defendants personally conspired. He had no power to. The Court of Appeal said the same in Bina Jati: fraud claims against people outside the arbitration agreement belong in open court.

Notice how the judge handled a case that seemed to point the other way. The judge did not say Dato' Sivananthan was wrong. The judgment shows why it did not fit: it was not a case about a tribunal deciding things beyond its power. It also came with its own warning that great caution is needed before shutting anyone out. That is how you distinguish a case. It is a skill you will use in every problem question.

Strike out just part of it? A court can strike out part of a claim. But SPNB pleads the fake papers as the foundation of one wider scheme. Separating them from what each defendant knew and did needs evidence, so it is a job for trial.

Abuse of process? The defendants said the claim was an afterthought, only brought after SPNB lost the arbitration. SPNB said it only learned the wider facts after a new chairman arrived in 2023. The judge would