Government?s 2005 decision to ban Bermudians from selling homes to foreigners was branded ?unlawful? and ?an abuse of power? by a Supreme Court judge yesterday.

Puisne Judge Geoffrey Bell ruled ? in a case involving the Island?s most expensive residential property ? that the Minister of Labour, Home Affairs and Public Safety had not acted in the public interest when he brought in the controversial policy change a year ago.

It prevented the sale to non-Bermudians of GoldenEye, a mansion on the so-called Billionaires? Row in Tucker?s Town, belonging to property developers Alan and Vera Rosa Marshall.

The Bermudian couple took the Minister Randolph Horton to court over his policy change and were last night celebrating after Mr. Justice Bell found in their favour.

The test ruling will allow them to globally market the $45 million property and could pave the way for the sale of other high-end properties to foreigners.

Mr. Justice Bell said Mr. and Mrs. Marshall ? represented in the case by former Attorney General Saul Froomkin ? had a legitimate expectation that the Government?s original policy on the sale of homes above a certain annual rental value (ARV) ? which permitted purchases by foreigners ? would not be changed and that they would be able to sell GoldenEye, on which they had spent $37 million, to a non-Bermudian.

?The breach of the plaintiffs? legitimate expectation by the amended policy is unfair, to the extent that it represents an abuse of power and is hence unlawful,? he said.

The wider implications of his ruling for other Bermudian landowners hoping to sell their properties to foreigners remained unclear last night. A statement from Mr. Horton suggested that the Minister himself was unsure of the situation.

?Whilst Justice Bell?s judgement is not the one that I might have anticipated, I am obliged to accept it,? he said.

?In the meantime, I am awaiting advice with respect to the impact that today?s judgment will have on the ability of other Bermudian landowners to sell certain properties to the non-Bermudian market.?

Mr. Horton said the Government was considering the legal responses available to it in light of the judgement.

He added: ?I am also reviewing the land policy itself in order for the Government to continue to protect the land stock for Bermudians.?

The Marshalls bought two undeveloped plots of land in Tucker?s Town, St. George?s, in 1995 and 1996 at a cost of $7 million. Between 1997 and 2003 they built a main house, GoldenEye, and a cottage, on the two-and-half acre site, spending more than $30 million.

The couple hoped to sell GoldenEye to a non-Bermudian buyer for about $45 million. Prior to last year?s policy change, non-Bermudians were permitted to buy homes with an ARV above $126,000; GoldenEye had an ARV of $1,182,000, the highest on the Island.

Mr. Justice Bell said the Minister?s amended policy, which came into effect last February, had a ?devastating? consequence for the Marshalls. The policy change meant non-Bermudians could only buy homes from other non-Bermudians. It made GoldenEye effectively unsellable, as no Bermudian would be able to afford the cost.

The Government?s response to the Marshalls? legal challenge was to claim that the policy change was to tackle Bermuda?s housing crisis and reduce the stock of houses available to non-Bermudians.

Mr. Justice Bell dismissed both arguments. He said: ?if the Minister wanted to reduce the stock of houses available for purchase by non-Bermudians, it would have been both easy and logical to make a significant upward adjustment of the minimum ARV, as had been done on numerous previous occasions over many years.?

He added: ?Clearly the issue of housing is a serious one, but the problem is generally considered in terms of affordable housing. Properties in Tucker?s Town for sale in the tens of millions of dollars are very few and I do not believe that they can be said to contribute to the very high cost of much more modest property elsewhere in Bermuda.

?I would not choose to draw any inference that the amended policy could be justified by reference to the current housing crisis.?

The judge said the Government did not consult with either real estate agents or Bermudians owning properties with ARVs above $126,000 before it changed its position.

He added: ?There was no evidence filed in these proceedings giving the Minister?s reasons for having made his decision.?

Solicitor General Wilhelm Bourne ? acting on behalf of the Government ? told an earlier hearing that the Minister should be deemed to have acted in the public interest because that was his duty.

But Mr. Justice Bell said yesterday: ?The Minister, or those advising him, did not see fit to put the reasons for the amended policy before the court.

?If there had been good policy reasons for such a radical departure from the previous policy, one would have expected that the Minister would have wanted the court to know what it was.

?In the absence of any evidence, I do not consider it appropriate to proceed as Mr. Bourne suggested and infer that the Minister acted in the public interest.?

He said Mr. Bourne?s contention that the Minister could exercise his discretion on an application by a non-Bermudian to buy a property above the ARV threshold from a Bermudian was unrealistic, as the policy amendment unequivocally precluded a licence being granted. The judge awarded costs to the Marshalls.