The commercial court will formulate its orders on the issue today. The sale to Olam will proceed today if the banks as secured creditors agree to discharge their mortgages. "The ball is in the bank's court," said Justice Ross Robson.

"If they agree the sale can go ahead, but if it does the proceeds must be held in trust until the growers' proprietary rights to those moneys are established or agreed."

The secured creditors and the growers were to consider their positions overnight and return to the court this morning.

The banks, who are owed $249 million, have offered Timbercorp almond growers $6 million, which the growers have rejected.

Justice Robson said the Timbercorp liquidators, KordaMentha, were not justified in approving the $6 million payment to the growers. The apportionment should not be determined by negotiation.

Until the growers' legal rights were identified, "it is not possible to fairly assess the value of the rights being surrendered on behalf of the growers", he said.

Justice Robson said he was satisfied the liquidators had established a proper sale process, and that Olam's $128 million offer was the highest of the seven bids submitted.

The Timbercorp growers group had subsequently appointed a temporary responsible entity, Huntley Management, and a possible higher offer. However, "one bird in the hand is worth two in the bush", he said.

If the Olam bid was lost, there was a chance it would not be repeated and the whole sale process would have to begin again. "No one else is in sight to recapitalise the schemes," he said.