VC George J:

This appeal is against the dismissal by the learned Senior Assistant Registrar of the plaintiff's application for summary judgment.

The plaintiff's claim was for the sum of RM105,782.50 which amount is claimed to be the balance due for the supply of earth to the defendant pursuant to the terms of a written contract entered into between the parties dated 18 February 1981. The plaintiff was required to supply earth to the defendant at the agreed rate of RM16.50 per lorry load of 6 cubic yards "as measured on the lorry". The plaintiff had agreed to supply at least 4,500 lorry loads in a 30-day period. The agreement provided that in the event he supplied less than that amount per 30 day period he was required to pay all costs, claims, damages, fines, penalty and other proceedings which may be taken against the defendant by the main contractor.

It was a term of the contract that the defendant was to make payment to the plaintiff on a monthly basis and within 7 days of the receipt of a statement of account and invoices in respect of the amounts due and payable at that stage. Half monthly statements of accounts were rendered based on bills sent. On the statement of account an endorsement "if you do not agree with the above balance please inform us within 2 weeks". From time to time certain amounts were paid by the defendant to the plaintiff and then came a situation where a cheque was dishonoured it not having been arranged for. This cheque was replaced by another but when this was presented, the plaintiff learnt that the defendant had instructed the bank to stop payment of the cheque. Two other cheques drawn in favour of the plaintiff by the defendant suffered a similar fate.

Although the contract was dated 18 February 1981 in fact the arrangement between the parties was in effect since June 1980. From June up to October the parties appear to have been happy with each other. There was a systematic practice of the servant or agent of the defendant issuing a delivery receipt in respect of each lorry load delivered which specified time date and volume of earth and lorry number. The defendant contends that in October, 1980 they noticed that the quantity of earth in the lorries was below the required 6 cubic yards. They complained to the plaintiff and on the plaintiff's undertaking to supply in future the agreed amount, their servant or agent continued to issue delivery receipts acknowledging receipt of the lorry loads specifying date, time and volume, in each case 6 cubic yards.

However, on 12 January 1981 in respect of the 121 lorry loads delivered on that day, acknowledgement of the delivery of the earth was made but the volume of earth in each lorry load was not specified in the delivery receipt. Some discussion appears to have taken place on that day which resulted in the delivery of the lorry loads thereafter, being acknowledged as being 6 cubic yards. In the meantime, letters were being sent in respect of the dishonoured cheques and the plaintiff contended that because they were not being paid they stopped delivery.

The defendant has filed a statement of defence and took out a counterclaim in respect of certain amounts which they claim they are entitled for the hire of vibrator compactors and the overcharging for the hire of certain vehicles.

I think there is a short answer to this dispute. In effect the terms of the contract between the parties called for there to be an account stated between the parties every month, the account stated to come about by the plaintiff delivering a statement of account, the defendant having 2 weeks within which to query the accounts. The law is that in the event of non-query an account stated came into existence which creates an estoppel against the defendant from querying the accounts thereafter. There are situations, for example if there is fraud, when a query may be permitted but on the facts of this case, in my opinion, no such situation exists. Particularly as the defendan