SO the GoldenEye case ended (at least temporarily) amid the self-same confusion that has, from the outset, characterised Home Affairs Minister Randy Horton's edict to restrict the sale of top-end Bermudian-owned property to overseas purchasers ever since it was abruptly introduced.

Let's review the strange sequence of events.

Earlier this year property developers Alan and Vera. Marshall successfully took the Government to court challenging the February, 2005 policy change which stated Bermudians could not sell homes to foreigners. Prior to the change in the rules, homes could be sold on the international market as long as they were above an Annual Rental Value fixed by the Government. The new policy said this now only applied to non-Bermudian property owners.

Mr. and Mrs. Marshall argued that this torpedoed any chance they had of selling GoldenEye ? in which they had invested $37 million ? as no Bermudian could afford it.

Supreme Court Judge Geoffrey Bell subsequently declared that the policy was indeed unlawful.

The Government took the case before the Court of Appeal on Monday in a bid to get Mr. Justice Bell's ruling overturned and have the policy declared lawful once more.

On the second day of the Court of Appeal case involving the luxury home, the Government's lawyer said that despite a policy banning Bermudians selling homes to foreigners the Minister of Labour and Home Affairs would consider this case on its merits.

But the judges said they could not make a decision at this stage on whether the actual policy is lawful or not, adding the declaration of unlawfulness by Mr. Justice Bell should be "stayed" and the appeal adjourned until November. Judge Charles Mantell indicated that the Appeal Court could be asked at that stage to consider whether the declaration should be "set aside". The matter of costs will also be discussed then.

The impact of events on other Bermudians who may wish to sell their top-of-the-market homes to foreigners remains unclear. Government lawyer Professor Jeffrey Jowell QC told the Appeal judges that the declaration that the policy was unlawful related entirely to Mr. and Mrs. Marshall who, he found, had their legitimate expectation to sell GoldenEye breached.

He said that while that did not technically set a precedent for other people there are others who would like the courts to establish that they, too, had a legitimate expectation to sell their homes on the international market.

"The Minister is concerned that we don't in any way endorse the notion of a legitimate expectation," he said, explaining that the Government wishes the policy to stay in place.

Speaking afterwards, Premier Alex Scott said that while the Marshalls may seek permission to sell GoldenEye, the policy will still stand in order to protect what he called "real property in Bermuda".

And just yesterday the Home Affairs Minister strongly reiterated his position: "My intention in introducing the Land Policy is to provide more land over time for Bermudians and in keeping with this aim, I do not accept that anyone has an expectation that overrides our need to constantly review or change our policies to meet the growing need of the Bermuda public to have access to affordable property."

In fact, the amended policy will not meet the need of the Bermudian public to have access to affordable property.

Not only does it not serve the public interest in the least but a microeconomic application of this policy shows irrefutably that it actually serves to the housing crisis.

Justice Geoffrey Bell saw the legal and economic implications clearly and came to the right decision. And he ruled for the plaintiffs based on only two of the many defences that can be brought against Government and these were:

1) The legitimate expectation of the plaintiffs - also known as the equitable doctrine of promissory estoppel

2) The amended policy was an abuse of power

The absolute travesty we face right now is that the Government continues to refuse to accept Justice Bell's decision and will continue to appeal later in the year. I find it outrageous that the cost of the trial of Jamal Hart was given as a reason to declare a mistrial when this appeal has already incurred unnecessary and excessive costs.

I mentioned last week that there are other defences to the amended policy and I shall elaborate.

IF (and it's a big if) the Government ultimately win on appeal, this will likely end up being decided by the Privy Council - and IF the Government prevail (an even bigger IF) then a group of Bermudians have a class action suit planned based on a few different defences ? namely the unconstitutional removal by a Government of personal property without due process and/or compensation, for one. You see, folks, the day this law went into effect, all Bermudian-owned homes in excess of the ARV (mentioned above) suffered a significant drop in value. For the average affected home, that drop amounted to $1 million for a home that was previously valued at $5 to $6 million. Therefore this class action would seek to either overturn the law or recover the drop in value suffered by all affected homeowners. If the courts find this law to be enforceable then the Constitution of Bermuda demands those deprived of property (i.e. value) be reimbursed.

Guess how much that will cost the Government, folks?..and ultimately us?

It's a shame we can't sue the Government for incompetence in handling our funds like we can as shareholders of a listed entity. If Bermuda was a stock company, most of our Ministers would be facing shareholder derivative actions and replaced.